A common question that many web owners have, and which it isn’t always easy to get a straight answer to, is whether you are allowed to use a competitor’s trademark within your website’s metatags. The most commonly cited case relevant to this question is that of Red Label Vacations Inc. vs 411 Travel Buys Limited. In this case, evidence was accepted by the federal court of Canada that showed a defendant’s website did contain meta-tags which used a trademark belonging to a plaintiff’s website.
What are Metatags?
Metatags, which are used to aid search engines in indexing, are not visible on a webpage, unless you look at the source code. Regarding the issue of whether a trademark in the metatags of a website constituted copyright infringement, the court ruled that while there may be some cases where metatags displayed sufficient originality to be covered by copyright law, the examples offered in this case did not meet that standard.
Can They Constitute Trademark Infringement?
With regards to the issue of using a competitor’s name in metatags, the court found that, in order for copyright infringement to have occurred, a searcher who was looking for a particular website by searching for a particular copyrighted name or other trademark, must have experienced some confusion upon reaching the webpage in question. In other words, the web searcher would have to arrive on one webpage through the search engine, and be under the impression that they had in fact landed on the page of the entity that owned copyright on the term in the metatags. If this level of confusion could not reasonably have been said to have occurred, then no copyright infringement had taken place.
Therefore, it was deemed that the simple use of a trademarked term within metatags could not, in itself, constitute copyright infringement as this in itself would not demonstrate that confusion was likely to arise. However, it should be noted that this decision does not mean that the use of a trademarked name within metatags cannot constitute infringement of that trademark. It does, however, set a precedent and implies a set of guidelines and a test as to whether infringement has occurred.
The Appeal
The case was ultimately appealed, with the Federal Court of Appeal reaffirming the decision and coming to the conclusion that inserting a trademark into metatags may constitute, in some cases, an advertisement of services that would give rise to grounds for infringement. This interpretation has been widely debated among legal scholars, and many disagree with the ultimate findings, however, the precedent that was set has been broadly accepted. Website owners should familiarize themselves with the particulars of the finding as those who fall afoul of it could find themselves exposed legally as having engaged in misleading or deceptive marketing practices. If you are unsure as to whether using a trademark in your websites metatags then you should consult with a business lawyer or SEO professionals.
Using a trademarked term in your websites metatags does not necessarily constitute copyright infringement, but it can do in some cases. It is therefore important that website owners understand how this determination is made.
